Filed 06/25/20 Page 1 of 56

Case 3:20-cv-04186 Document 1 Filed 06/25/20 Page 1 of 56 1 Nitin Shah (DC Bar No. 156035) (pro hac vice application forthcoming) 2 [email protected] Jeffrey B. Dubner (DC Bar No. 1013399) 3 (pro hac vice application forthcoming) [email protected] 4 Sean A. Lev (DC Bar No. 449936) (pro hac vice application forthcoming) 5 [email protected] Democracy Forward Foundation 6 P.O. Box 34553 Washington, DC 20043 7 Telephone: (202) 448-9090 Facsimile: (202) 701-1775 8 Sarah A. Good (State Bar No. 148742) 9 [email protected] Anthony Schoenberg (State Bar No. 203714) 10 [email protected] Eric D. Monek Anderson (State Bar No. 320934) 11 [email protected] Farella Braun + Martel LLP 12 235 Montgomery Street, 17th Floor San Francisco, California 94104 13 Telephone: (415) 954-4400 Facsimile: (415) 954-4480 14 Attorneys for Plaintiffs 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA 17 SAN FRANCISCO DIVISION 18 19 NATIONAL COMMUNITY REINVESTMENT Case No. 20 COALITION; CALIFORNIA REINVESTMENT COALITION, COMPLAINT FOR DECLARATORY 21 AND INJUNCTIVE RELIEF Plaintiffs, 22 Administrative Procedure Act Case vs. 23 OFFICE OF THE COMPTROLLER OF THE 24 CURRENCY and BRIAN BROOKS, in his official capacity as Acting Comptroller of the 25 Currency, 26 Defendants. 27 28 Farella Braun + Martel LLP COMPLAINT FOR DECLARATORY AND 235 Montgomery Street, 17th Floor San Francisco, California 94104 INJUNCTIVE RELIEF (415) 954-4400 Case 3:20-cv-04186 Document 1 Filed 06/25/20 Page 2 of 56 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION ..................................................................................................................1 4 II. JURISDICTION AND VENUE .............................................................................................3 5 III. PARTIES ................................................................................................................................3 6 IV. FACTUAL ALLEGATIONS .................................................................................................4 7 A. The Community Reinvestment Act ............................................................................4 8 B. The Unified CRA Implementing Regulations ............................................................8 9 C. Joseph Otting’s Longstanding Hostility to the CRA ................................................11 10 D. Otting’s Decision to Break from the Unified CRA Regulatory Framework ............13 11 E. OCC’s Refusal to Publish All Data, Analysis, and Input Underlying the Rule ..........................................................................................................................19 12 F. Otting’s Refusal to Change Course Despite COVID-19 or Even 13 Acknowledge the Changed Economic Landscape ...................................................20 14 G. OCC’s Flawed Final Rule ........................................................................................21 15 1. The Final Rule Allows Credit for Activities Whose Benefit to LMI Communities Is Speculative and Negligible ................................................23 16 2. The Final Rule Allows Banks to Obtain Credit Without Meeting the 17 Need for Services in LMI Communities Where They Do Business ............28 18 3. The Final Rule Abandons the Needs of Local Communities for a One-Size-Fits-All Formula ...........................................................................32 19 4. The Final Rule Reduces Public Input and Transparency .............................40 20 H. Harm to NCRC .........................................................................................................41 21 I. Harm to CRC ............................................................................................................46 22 V. CLAIM FOR DECLARATORY AND INJUNCTIVE RELIEF .........................................50 23 24 25 26 27 28 Farella Braun + Martel LLP COMPLAINT FOR DECLARATORY AND 235 Montgomery Street, 17th Floor i San Francisco, California 94104 INJUNCTIVE RELIEF (415) 954-4400 Case 3:20-cv-04186 Document 1 Filed 06/25/20 Page 3 of 56 1 Plaintiffs the National Community Reinvestment Coalition (“NCRC”) and California 2 Reinvestment Coalition (“CRC”), by and through undersigned counsel, hereby allege as follows: 3 I. INTRODUCTION 4 1. Plaintiffs bring suit under the Administrative Procedure Act, 5 U.S.C. § 702, to 5 challenge a Final Rule issued by the Office of the Comptroller of the Currency (“OCC”) revising 6 the regulations implementing the Community Reinvestment Act, 12 U.S.C. § 2901 et seq. 7 2. In 1977, Congress passed the Community Reinvestment Act (“Act” or “CRA”) to 8 address systemic discrimination in the provision of financial services to low- and moderate- 9 income (“LMI”) neighborhoods and communities of color—especially the practice of refusing to 10 provide financing in these neighborhoods, commonly known as “redlining.” Recognizing the 11 devastating effect on these neighborhoods of decades of redlining and other forms of 12 discrimination, Congress passed the Act to encourage banks to invest in underserved communities. 13 Since its enactment, the CRA has been a critical part of federal, state, local, and nongovernmental 14 efforts to improve the economic condition of LMI communities. 15 3. Plaintiffs, two nonprofit organizations, are focused on increasing the flow of 16 investment to LMI communities. Plaintiffs work, along with and on behalf of their members, to 17 ensure that banks fulfill their CRA obligations and to maximize the benefits that LMI 18 communities realize from these investments. Through negotiations with banks, Plaintiffs have 19 helped secure over $150 billion in CRA funds for these communities since 2016 alone. 20 4. Until now, the three federal financial regulatory agencies charged with 21 implementing the Act—OCC, the Board of Governors of the Federal Reserve System, and the 22 Federal Deposit Insurance Corporation—have jointly issued uniform regulations ensuring that the 23 Act is implemented robustly and that banks’ incentives are properly aligned, consistent with the 24 Act’s text and purpose, to serve the needs of the LMI communities where they operate. 25 5. In June 2020, OCC, acting alone and without the support of the other federal 26 regulatory agencies that implement the CRA, issued a Final Rule that guts the Act and eviscerates 27 the backing it provides to the LMI communities and communities of color that have long suffered 28 from discrimination by financial institutions. Led by a Comptroller of the Currency who has a Farella Braun + Martel LLP COMPLAINT FOR DECLARATORY AND 235 Montgomery Street, 17th Floor 1 San Francisco, California 94104 INJUNCTIVE RELIEF (415) 954-4400 Case 3:20-cv-04186 Document 1 Filed 06/25/20 Page 4 of 56 1 long history of antipathy to the Act and community development organizations, the Final Rule will 2 siphon significant amounts of lending, investments, and bank services away from LMI 3 communities. It will allow banks to receive credit for activities that do little or nothing to help 4 those communities and that may in fact harm and displace the residents of these communities. By 5 broadening the regulation’s geographic criteria and applying a one-size-fits-all formula, the Final 6 Rule ignores local needs and allows banks to disregard a large number of communities in favor of 7 ones where it may be more financially advantageous to concentrate their investments. And in 8 implementing a ratio-based approach and removing the right of the public to comment on bank 9 performance, the Final Rule will result in banks passing over smaller, more beneficial projects, 10 and will diminish or eliminate opportunities for community engagement and input—long the 11 linchpin of successful community reinvestment efforts. 12 6. The Final Rule is inconsistent with OCC’s duties under the CRA. Specifically, the 13 Final Rule fails to adhere to OCC’s affirmative obligation to ensure that the banks it regulates 14 meet the needs of the communities, including LMI communities, where they do business. See 12 15 U.S.C. § 2901(a)(3), (b). The Final Rule also violates the statute by allowing banks to ignore local 16 needs, instead assessing banks’ compliance on a sweepingly broad scale and permitting banks to 17 obtain CRA compliance credit for financing mega-projects that do little to serve LMI 18 communities. See 12 U.S.C. § 2901(a)(3), (b). 19 7. Separate and apart from those statutory violations, the Final Rule also represents a 20 failure by OCC to engage in the “reasoned decisionmaking” required by the Administrative 21 Procedure Act (“APA”).1 In rushing its Final Rule through the administrative process, OCC 22 provided little or no data or analysis to support its new approach—to a degree that even many 23 banks criticized the measure because of the uncertain effects it will have on their operations. 24 Further, OCC ignored or brushed aside comments—including by Plaintiffs and countless others— 25 about the harmful effects the Final Rule would have on LMI neighborhoods and communities of 26 color. The Final Rule also ignores concerns expressed by other federal regulators and many 27 1 28 See Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983). Farella Braun + Martel LLP COMPLAINT FOR DECLARATORY AND 235 Montgomery Street, 17th Floor 2 San Francisco, California 94104 INJUNCTIVE RELIEF (415) 954-4400 Case 3:20-cv-04186 Document 1 Filed 06/25/20 Page 5 of 56 1 commenters, including Plaintiffs,

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